Justice
Joseph Story on Church and State and the Federal Bill of Rights (1833)

[EDITOR'S NOTE: JUSTICE
JOSEPH STORY ON CHURCH AND STATE AND THE FEDERAL BILL OF RIGHTS, including his
Dedication and Preface to his Commentaries (1833). The following
is excerpted from: Joseph Story, LL. D., Dane Professor of Law in Harvard
University, Commentaries on the Constitution of the United States; with a
Preliminary Review of the Constitutional History of the Colonies and States,
before the Adoption of the Constitution. Abridged by the Author, for the
Use of Colleges and High Schools (Boston: Hilliard, Gray, and
Company/Cambridge: Brown, Shattuck, and Co., 1833), pp. iii-viii, 693-703.

United States
Supreme Court Justice Joseph Story (1779-1845) was a famous jurist, and his
Commentaries was a very influential treatise on United States
constitutional law. Story, first a Jeffersonian Republican and then
(following his appointment to the Supreme Court of the United States by
President James Madison), a Federalist, was one of the United States' most
influential Supreme Court justices. His tenure on the Supreme Court
spanned three decades, from 1811 to 1845. At the beginning of the
twentieth century, Story was elected to the Hall of Fame. His views
on the Constitution of the United States are still widely respected.

I ask the
favour of dedicating this work to you. I know not, to whom it could
with so much propriety be dedicated, as to one, whose youth was engaged in the
arduous enterprises of the Revolution; whose manhood assisted in framing and
supporting the national Constitution; and whose maturer years have been devoted
to the task of unfolding its powers, and illustrating its principles.
When, indeed, I look back upon your judicial labours during a period of
thirty-two years, it is difficult to suppress astonishment at their extent and
variety, and at the exact learning, the profound reasoning, and the solid
principles, which they every where display. Other Judges have
attained an elevated reputation by similar labours in a single department of
jurisprudence. But in one department, (it need scarcely be said, that I
allude to that of constitutional law,) the common consent of your countrymen has
admitted you to stand without a rival. Posterity will assuredly confirm by
its deliberate award, what the present age has approved, as an act of undisputed
justice. Your expositions of constitutional law enjoy a rare and
extraordinary authority. They constitute a monument of fame far
beyond the ordinary memorials of political and military glory. They are
destined to enlighten, instruct, and convince future generations; and can
scarcely perish but with the memory of the constitution itself. They
are the victories of a mind accustomed to grapple with difficulties, capable of
unfolding the most comprehensive truths with masculine simplicity, and severe
logic, and prompt to dissipate the illusions of ingenious doubt, and subtle
argument, and impassioned eloquence. They remind us of some mighty river
of our own country, which, gathering in its course the contributions of many
tributary streams, pours at last its own current into the ocean, deep, clear,
and irresistible.

But I
confess, that I dwell with even more pleasure upon the entirety of a life
adorned by consistent principles, and filled up in the discharge of virtuous
duty; where there is nothing to regret, and nothing to conceal; no friendships
broken; no confidence betrayed; no timid surrenders to popular clamour; no eager
reaches for popular favour. Who does not listen with conscious pride to
the truth, that the disciple, the friend, the biographer of Washington, still
lives, the uncompromising advocate of his principles?

I am but
too sensible, that to some minds the time may not seem yet to have arrived, when
language, like this, however true, should meet the eyes of the public. May
the period be yet far distant, when praise shall speak out with that fulness of
utterance, which belongs to the sanctity of the grave.

But I know
not, that in the course of providence the privilege will be allowed me
hereafter, to declare, in any suitable form, my deep sense of the obligations,
which the jurisprudence of my country owes to your labours, of which I have been
for twenty-one years a witness, and in some humble measure a companion.
And if any apology should be required for my present freedom, may I not say,
that at your age all reserve may well be spared, since all your labours must
soon belong exclusively to history?

Allow me to
add, that I have a desire (will it be deemed presumptuous?) to record upon these
pages the memory of a friendship, which has for so many years been to me a
source of inexpressible satisfaction; and which, I indulge the hope, may
continue to accompany and cheer me to the close of life.

I am with the highest respect,

affectionately your servant,

JOSEPH STORY.

Cambridge, January,
1833.

_______

PREFACE

TO THE ORIGINAL WORK.

________

I now offer
to the public another portion of the labours devolved on me in the execution of
the duties of the Dane Professorship of Law in Harvard University. The
importance of the subject will hardly be doubted by any persons, who have been
accustomed to deep reflection upon the nature and value of the Constitution of
the United States. I can only regret, that it has not fallen into abler
hands, with more leisure to prepare, and more various knowledge to bring to such
a task.

Imperfect,
however, as these Commentaries may seem to those, who are accustomed to demand a
perfect finish in all elementary works, they have been attended with a degree of
uninviting labour, and dry research, of which it is scarcely possible for the
general reader to form any adequate estimate. Many of the materials lay
loose and scattered; and were to be gathered up among pamphlets and discussions
of a temporary character; among obscure private and public documents; and from
collections, which required an exhausting diligence to master their contents, or
to select from unimportant masses, a few facts, or a solitary argument.
Indeed, it required no small labour, even after these sources were explored, to
bring together the irregular fragments, and to form them into groups, in which
they might illustrate and support each other.

From two
great sources, however, I have drawn by far the greatest part of my most
valuable materials. These are, The Federalist, an incomparable commentary
of three of the greatest statesmen of their age; and the extraordinary Judgments
of Mr. Chief Justice Marshall upon constitutional law. The former have
discussed the structure and organization of the national government, in all its
departments, with admirable fulness and force. The latter has expounded
the application and limits of its powers and functions with unrivalled
profoundness and felicity. The Federalist could do little more, than state
the objects and general bearing of these powers and functions. The
masterly reasoning of the Chief Justice has followed them out to their ultimate
results and boundaries, with a precision and clearness, approaching, as near as
may be, to mathematical demonstration. The Federalist, being written to
meet the most prevalent popular objections at the time of the adoption of the
Constitution, has not attempted to pursue any very exact order in its reasoning;
but has taken up subjects in such a manner, as was best adapted at the time to
overcome prejudices, and win favour. Topics, therefore, having a natural
connexion, are sometimes separated; and illustrations appropriate to several
important points, are sometimes presented in an incidental discussion. I
have transferred into my own pages all, which seemed to be of permanent
importance in that great work; and have thereby endeavoured to make its merits
more generally known.

The reader
must not expect to find in these pages any novel views, and novel constructions
of the Constitution. I have not the ambition to be the author of any new
plan of interpreting the theory of the Constitution, or of enlarging or
narrowing its powers by ingenious subtleties and learned doubts. My
object will be sufficiently attained, if I shall have succeeded in bringing
before the reader the true view of its powers maintained by its founders and
friends, and confirmed and illustrated by the actual practice of the government.
The expositions to be found in the work are less to be regarded, as my own
opinions, than as those of the great minds, which framed the Constitution, or
which have been from time to time called upon to administer it. Upon
subjects of government it has always appeared to me, that metaphysical
refinements are out of place. A constitution of government is addressed to
the common sense of the people; and never was designed for trials of logical
skill, or visionary speculation.

The reader
will sometimes find the same train of reasoning brought before him in different
parts of these Commentaries. It was indispensable to do so, unless the
discussion was left imperfect, or the reader was referred back to other pages,
to gather up and combine disjointed portions of reasoning. In cases,
which have undergone judicial investigation, or which concern the judicial
department, I have felt myself restricted to more narrow discussions, than in
the rest of the work; and have sometimes contented myself with a mere transcript
from the judgments of the court. It may readily be understood, that this
course has been adopted from a solicitude, not to go incidentally beyond the
line pointed out by the authorities.

In
dismissing the work, I cannot but solicit the indulgence of the public for its
omissions and deficiencies. With more copious materials it might have been
made more exact, as well as more satisfactory. With more leisure and more
learning it might have been wrought up more in the spirit of political
philosophy. Such as it is, it may not be wholly useless, as a means of
stimulating abler minds to a more thorough review of the whole subject; and of
impressing upon Americans a reverential attachment to the Constitution, as in
the highest sense the palladium of American liberty.

January,
1833.

_______________

ADVERTISEMENT TO THE
ABRIDGMENT.

The present
work is an abridgment, made by the author, of his original work, for the use of
Colleges and High-schools. It presents in a compressed form the leading
doctrines of that work, so far as they are necessary to a just understanding of
the actual provisions of the constitution. Many illustrations and
vindications of these provisions are necessarily omitted. But sufficient
are retained to enable every student to comprehend and apply the great
principles of constitutional law, which were maintained by the founders of the
constitution, and which have been since promulgated by those, who have, from
time to time, administered it, or expounded its powers. I indulge the
hope, that even in this reduced form the reasoning in favour of every clause of
the constitution will appear satisfactory and conclusive; and that the youth of
my country will learn to venerate and admire it as the only solid foundation, on
which to rest our national union, prosperity, and glory.

April,
1833.

[* * * * *]

CHAPTER XLIV.

AMENDMENTS TO THE
CONSTITUTION.

§
976. We have already had occasion to take notice of some of
the amendments made to the constitution, subsequent to its adoption, in the
progress of our review of the provisions of the original instrument. The
present chapter will be devoted to a consideration of those, which have not
fallen within the scope of our former commentaries.

§
977. It has been already stated, that many objections were
taken to the constitution, not only on account of its actual provisions, but
also on account of its deficiencies and omissions. Among the latter,
none were proclaimed with more zeal, and pressed with more effect, than the want
of a bill of rights. This, it was said, was a fatal defect; and sufficient
of itself to bring on the ruin of the republic. To this objection several
answers were given; first, that the constitution did in fact contain many
provisions in the nature of a bill of rights, if the whole constitution was not
in fact a bill of rights; secondly, that a bill of rights was in its nature more
adapted to a monarchy, than to a government, professedly founded upon the will
of the people, and executed by their immediate representatives and agents; and,
thirdly, that a formal bill of rights, beyond what was contained in it, was
wholly unnecessary, and might even be dangerous.

§
978. It was further added, that in truth the constitution
itself was, in every rational sense, and to every useful purpose, a bill of
rights for the Union. It specifies, and declares the political privileges
of the citizens in the structure and administration of the government. It
defines certain immunities and modes of proceeding, which relate to their
personal, private, and public rights and concerns. It confers on them the
unalienable right of electing their rulers; and prohibits any tyrannical
measures, and vindictive prosecutions. So, that, at best, much of the
force of the objection rests on mere nominal distinctions, or upon a desire to
make a frame of government a code to regulate rights and remedies.

§
979. Although it must be conceded, that there is much
intrinsic force in this reasoning, it cannot in candour be admitted to be wholly
satisfactory, or conclusive on the subject. It is rather the argument of
an able advocate, than the reasoning of a constitutional statesman. In the
first place, a bill of rights (in the very sense of this reasoning) is admitted
in some cases to be important; and the constitution itself adopts, and
establishes its propriety to the extent of its actual provisions. Every
reason, which establishes the propriety of any provision of this sort in the
constitution, such as a right of trial by jury in criminal cases, is, pro
tanto, proof, that it is neither unnecessary nor dangerous. It
reduces the question to the consideration, not whether any bill of rights is
necessary, but what such a bill of rights should properly contain. This is
a point for argument, upon which different minds may arrive at different
conclusions. That a bill of rights may contain too many
enumerations, and especially such, as more correctly belong to the ordinary
legislation of a government, cannot be doubted. Some of our state
bills of right contain clauses of this description, being either in their
character and phraseology quite too loose, and general, and ambiguous; or
covering doctrines quite debateable, both in theory and practice; or even
leading to mischievous consequences, by restricting the legislative power under
circumstances, which were not foreseen, and if foreseen, the restraint would
have been pronounced by all persons inexpedient, and perhaps unjust.
Indeed, the rage of theorists to make constitutions a vehicle for the conveyance
of their own crude, and visionary aphorisms of government, requires to be
guarded against with the most unceasing vigilance.

§
980. In the next place, a bill of rights is important, and may
often be indispensable, whenever it operates, as a qualification upon powers,
actually granted by the people to the government. This is the real ground
of all the bills of rights in the parent country, in the colonial constitutions
and laws, and in the state constitutions. In England, the bills of rights
were not demanded merely of the crown, as withdrawing power from the royal
prerogative; they were equally important, as withdrawing power from parliament.
A large proportion of the most valuable of the provisions in Magna Charta, and
the bill of rights of 1688, consists of a solemn recognition of limitations upon
the power of parliament; that is, a declaration, that parliament ought
not to abolish, or restrict those rights. Such are the right of trial by
jury; the right to personal liberty and private property according to the law of
the land; that the subjects ought to have a right to bear arms; that elections
of members of parliament ought to be free; that freedom of speech and debate in
parliament ought not to be impeached, or questioned elsewhere; and that
excessive bail ought not to be required, nor excessive fines imposed, nor cruel
or unusual punishments inflicted. Whenever, then, a general power exists,
or is granted to a government, which may in its actual exercise or abuse be
dangerous to the people, there seems a peculiar propriety in restricting its
operations, and in excepting from it some at least of the most mischievous
forms, in which it may be likely to be abused. And the very exception in
such cases will operate with a silent, but irresistible influence to control the
actual abuse of it in other analogous cases.

§
981. In the next place, a bill of rights may be important,
even when it goes beyond powers supposed to be granted. It is not
always possible to foresee the extent of the actual reach of certain powers,
which are given in general terms. They may be construed to extend (and
perhaps fairly) to certain classes of cases, which did not at first appear to be
within them. A bill of rights, then, operates, as a guard upon any
extravagant or undue extention of such powers. Besides; (as has been
justly remarked,) a bill of rights is of real efficiency in controlling the
excesses of party spirit. It serves to guide, and enlighten public
opinion, and to render it more quick to detect, and more resolute to resist,
attempts to disturb private rights. It requires more than ordinary
hardihood and audacity of character, to trample down principles, which our
ancestors have consecrated with reverence; which we have imbibed in our early
education; which recommend themselves to the judgment of the world by their
truth and simplicity; and which are constantly placed before the eyes of the
people, accompanied with the imposing force and solemnity of a constitutional
sanction. Bills of rights are a part of the muniments of freemen, showing
their title to protection; and they become of increased value, when placed under
the protection of an independent judiciary instituted, as the appropriate
guardian of the public and private rights of the citizens.

§
982. In the next place, a bill of rights is an important
protection against unjust and oppressive conduct on the part of the majority of
the people themselves. In a government modified, like that of the United
States, (it has been said by a great statesman,) the great danger lies rather in
the abuse of the community, than of the legislative body. The
prescriptions in favour of liberty ought to be levelled against that quarter,
where the greatest danger lies, namely, that which possesses the highest
prerogative of power. But this is not found in the executive or
legislative departments of government; but in the body of the people, operating
by the majority against the minority. It may be thought, that all paper
barriers against the power of the community are too weak to be worthy of
attention. They are not so strong, as to satisfy all, who have seen, and
examined thoroughly the texture of such a defence. Yet, as they have a
tendency to impress some degree of respect for them, to establish the public
opinion in their favour, and to rouse the attention of the whole community, it
may be one means to control the majority from those acts, to which they might be
otherwise inclined.

§
983. The want of a bill of rights, then, is not either an
unfounded or illusory objection. The real question is not, whether every
sort of right or privilege or claim ought to be affirmed in a constitution; but
whether such, as in their own nature are of vital importance, and peculiarly
susceptible of abuse, ought not to receive this solemn sanction.
Doubtless, the want of a formal bill of rights in the constitution was a matter
of very exaggerated declamation, and party zeal, for the mere purpose of
defeating the constitution. But, so far as the objection was well founded
in fact, it was right to remove it by subsequent amendments; and congress have
(as we shall see) accordingly performed the duty with most prompt and laudable
diligence.

§
984. Let us now enter upon the consideration of the
amendments, which, (it will be found,) principally regard subjects properly
belonging to a bill of rights.

§
985. The first is "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition government for a redress of grievances."

§
986. And first, the prohibition of any establishment of
religion, and the freedom of religious opinion and worship.

How far any
government has a right to interfere in matters touching religion, has been a
subject much discussed by writers upon public and political law. The right
and the duty of the interference of government, in matters of religion, have
been maintained by many distinguished authors, as well those, who were the
warmest advocates of free governments, as those, who were attached to
governments of a more arbitrary character. Indeed, the right of a society
or government to interfere in matters of religion will hardly be contested by
any persons, who believe that piety, religion, and morality are intimately
connected with the well being of the state, and indispensable to the
administration of civil justice. The promulgation of the great doctrines
of religion; the being, and attributes, and providence of one Almighty God; the
responsibility to him for all our actions, founded upon moral freedom and
accountability; a future state of rewards and punishments; the cultivation of
all the personal, social, and benevolent virtues; --- these never can be a
matter of indifference in any well ordered community. It is, indeed,
difficult to conceive, how any civilized society can well exist without them.
And at all events, it is impossible for those, who believe in the truth of
Christianity, as a divine revelation, to doubt, that it is the especial duty of
government to foster, and encourage it among all the citizens and subjects.
This is a point wholly distinct from that of the right of private judgment in
matters of religion, and of the freedom of public worship according to the
dictates of one's own conscience.

§ 987.
The real difficulty lies in ascertaining the limits, to which government may
rightfully go in fostering and encouraging religion. Three cases may
easily be supposed. One, where a government affords aid to a particular
religion, leaving all persons free to adopt any other; another, where it creates
an ecclesiastical establishment for the propagation of the doctrines of a
particular sect of that religion, leaving a like freedom to all others; and a
third, where it creates such an establishment, and excludes all persons, not
belonging to it, either wholly, or in part, from any participation in the public
honours, trusts, emoluments, privileges, and immunities of the state. For
instance, a government may simply declare, that the Christian religion shall be
the religion of the state, and shall be aided, and encouraged in all the
varieties of sects belonging to it; or it may declare, that the Catholic or
Protestant religion shall be the religion of the state, leaving every man to the
free enjoyment of his own religious opinions; or it may establish the doctrines
of a particular sect, as of Episcopalians, as the religion of the state, with a
like freedom; or it may establish the doctrines of a particular sect, as
exclusively the religion of the state, tolerating others to a limited extent, or
excluding all, not belonging to it, from all public honours, trusts, emoluments,
privileges, and immunities.

§
988. Probably at the time of the adoption of the constitution,
and of the amendment to it, now under consideration, the general, if not the
universal, sentiment in America was, that Christianity ought to receive
encouragement from the state, so far as it is not incompatible with the private
rights of conscience, and the freedom of religious worship. An
attempt to level all religions, and to make it a matter of state policy to hold
all in utter indifference, would have created universal disapprobation, if not
universal indignation.

§
989. It yet remains a problem to be solved in human affairs,
whether say free government can be permanent, where the public worship of God,
and the support of religion, constitute no part of the policy or duty of the
state in any assignable shape. The future experience of Christendom, and
chiefly of the American states, must settle this problem, as yet new in the
history of the world, abundant, as it has been, in experiments in the theory of
government.

§
990. But the duty of supporting religion, and especially the
Christian religion, is very different from the right to force the consciences of
other men, or to punish them for worshipping God in the manner, which, they
believe, their accountability to him requires. It has been truly said,
that "religion, or the duty we owe to our Creator, and the manner of discharging
it, can be dictated only by reason and conviction, not by force or violence."
Mr. Locke himself, who did not doubt the right of government to interfere in
matters of religion, and especially to encourage Christianity, has at the same
time expressed his opinion of the right of private judgment, and liberty of
conscience, in a manner becoming his character, as a sincere friend of civil and
religious liberty. "No man, or society of men," says he, "have any
authority to impose their opinions or interpretations on any other, the meanest
Christian; since, in matters of religion, every man must know, and believe, and
give an account for himself." The rights of conscience are, indeed, beyond
the just reach of any human power. They are given by God, and cannot be
encroached upon by human authority, without a criminal disobedience of the
precepts of natural, as well as of revealed religion.

§
991. The real object of the amendment was, not to countenance,
much less to advance Mahometanism, or Judaism, or infidelity, by prostrating
Christianity; but to exclude all rivalry among Christian sects, and to prevent
any national ecclesiastical establishment, which should give to an hierarchy the
exclusive patronage of the national government. It thus sought to cut off
the means of religious persecution, (the vice and pest of former ages,) and the
power of subverting the rights of conscience in matters of religion, which had
been trampled upon almost from the days of the Apostles to the present age.
The history of the parent country had afforded the most solemn warnings and
melancholy instructions on this head; and even New-England, the land of the
persecuted puritans, as well as other colonies, where the Church of England had
maintained its superiority, had furnished a chapter, as full of dark bigotry and
intolerance, as any, which could be found to disgrace the pages of foreign
annals. Apostacy, heresy, and nonconformity have been standard crimes for
public appeals, to kindle the flames of persecution, and apologize for the most
atrocious triumphs over innocence and virtue.

§
992. It was under a solemn consciousness of the dangers from
ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of
sects, thus exemplified in our domestic, as well as in foreign annals, that it
was deemed advisable to exclude from the national government all power to act
upon the subject. The situation, too, of the different states equally
proclaimed the policy, as well as the necessity, of such an exclusion. In
some of the states, episcopalians constituted the predominant sect; in others,
presbyterians; in others, congregationalists; in others, quakers; and in others
again, there was a close numerical rivalry among contending sects. It was
impossible, that there should not arise perpetual strife and perpetual jealousy
on the subject of ecclesiastical ascendancy, if the national government were
left free to create a religious establishment. The only security was in
extirpating the power. But this alone would have been an imperfect
security, if it had not been followed up by a declaration of the right of the
free exercise of religion, and a prohibition (as we have seen) of all religious
tests. Thus, the whole power over the subject of religion is left
exclusively to the state governments, to be acted upon according to their own
sense of justice, and the state constitutions; and the Catholic and the
Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit
down at the common table of the national councils, without any inquisition into
their faith, or mode of worship.

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